FAQs

Police oversight can benefit not only the individual complainant, but also the larger community, police and sheriff’s departments, and even elected or appointed officials. The actual benefits that occur depend on how well the involved groups work together and the type of model implemented. Some potential benefits are:

Complainants are given a place to voice concerns outside of the law enforcement agency.

Oversight can help hold the police or sheriff’s department accountable for officer’s actions.

Oversight agencies can help improve the quality of the department’s internal investigations of alleged misconduct.

The community at large can be reassured that discipline is being imposed when appropriate, while also increasing the transparency of the disciplinary process.

When the oversight agency confirms a complainant’s allegation(s), complainants may feel validated.

And similarly, when the oversight agency exonerates the officer, the officer may feel vindicated.

Oversight agencies can help improve community relations by fostering communication between the community and police agency.

Oversight agencies can help reduce public concern about high profile incidents.

Oversight agencies can help increase the public’s understanding of law enforcement policies and procedures.

Oversight agencies can assist a jurisdiction in liability management and reduce the likelihood of costly litigation by identifying problems and proposing corrective measures before a lawsuit is filed.

Mediation has multiple benefits to both citizens and police officers. If the oversight agency provides mediated solutions, it can help complainants feel satisfied through being able to express their concerns to the specific police officer in a neutral environment. Mediation can also help police officers better understand how their words, behaviors and attitudes can unknowingly affect public perceptions.

By establishing an oversight system, public officials are provided the opportunity to demonstrate their desire for increased police accountability and the need to eliminate misconduct.

All of these potential benefits help to support the goals of community-oriented policing, which seeks to utilize problem solving techniques to work in a cooperative effort with the community to proactively address concerns.

Oversight systems can take a wide variety of forms and operate under a wide range of authorities. [1]

Each jurisdiction will have to carefully assess the needs of the community and the cost-benefits of the oversight program they adopt. The key question is whether the oversight system is sufficiently independent--in terms of political, professional and financial independence and authority—to do what is needed and what is asked of it.

It is helpful to think in terms of the goals of the community and what is being asked of the local oversight system. Specifically, what level of funding and how much authority should be given to the oversight agency in order to shoulder its identified tasks and succeed. The oversight agency’s mission should bear some relationship to the size of the police department, the department’s funding levels, and the level of trust or mistrust within the community—particularly among those segments of the community that historically have been the subjects of over-policing or bias-based policing.

Ongoing Monitoring/Auditing Authorities: Typically these systems allow for the oversight agency to be actively engaged in each, if not all, of the steps related to the complaint process.

Caution: When communities adopt language referring to an oversight “monitor,” it should be distinguished from monitors created as the result of federal consent decrees or court ordered monitoring through litigation brought by the US Department of Justice to end “patterns and practices” of unconstitutional policing under federal law.

More accurately, programs stemming from the adoption of a local ordinance or charter amendment to establish a “monitoring” program typically provide some form of ongoing review or audit of the complaint process. Communities should not think that calling the director of a local civilian oversight program a “monitor” will lead to the same broad powers and complex programs that make up the components of federal consent decrees.

To add to the confusion, the title of auditor is often assigned to the director of an oversight program even though few people in this role conduct audits in the technical sense of the word. Likewise, the title ombudsperson can be misleading as the heads of oversight programs are not advocates for complainants or the public but rather advocate for and work to forward a system that results in improved police performance and accountability. Increasingly, new oversight agencies simply refer to the executive directors of the programs as directors or executive directors.

How it Works: The work of monitors, auditors or ombudspersons in the context of locally adopted civilian oversight typically results in a process that is ongoing and engaged with each, if not all, of the steps involved in when a person in the community complains about the conduct of a police employee or employees in a particular situation. A full range of authorities under this type of system would result in engagement with each of the following steps.

i. Complaints are able to be received from a wide variety of sources—including in-person, telephonically, electronically, anonymously and through third persons with sufficient knowledge of the underlying circumstances;

ii. That the system is accessible through a variety of means (including in person, telephone, electronically);

iii. Individuals with limited English proficiency or special needs have access to the system;

iv. That complainants are not discouraged from filing a report and are free from retaliation;

v. The individuals receiving and screening complaints are well trained in conducting what is essentially an initial investigation;

Complaint classification—i.e., if proven would the alleged facts result in a finding of misconduct on the part of the named officer in violation of a specific policy or policies?

Report Writing—reviewing the investigative reports to determine whether the investigation was timely, thorough and objective.

Analysis—after the investigation is complete:

i. Analyzing information to determine whether facts are sufficient to prove (the usual standard is preponderance of evidence) the policy was violated,

ii. Identify issues of supervision or training.

iii. If there is authority to weigh in on or recommend corrective or disciplinary measures, the monitor may assess whether these measures were imposed in an even-handed manner consistent with the department’s disciplinary matrix.

iv. Alternative Dispute Resolution—the oversight program may be involved in administering or coordinating mediation programs.

Strengths: These types of agencies can be effective in identifying strengths and weaknesses in how complaints are handled, identifying areas of weakness—particularly bias—in investigations, spotting gaps in training, policy and supervision within the police department, providing opportunities for dialogue and understanding between the police and individuals and groups within the community, assessing the effectiveness of early warning systems and determining whether discipline is consistent and fair.

Weaknesses: These systems are often charged with collecting data and reporting trends. Because they are almost always complaint driven, it often takes many months to collect data that is reflective of a “trend.” Problems that exist within the police department may be systemic but are underreported because the police conduct affects people unlikely to complain—including disabled, people whose socio-economic status leaves them vulnerable and isolated. Other groups such as individuals working in sex trades or involved in gangs are not likely to report even the most egregious police misconduct. When members of marginalized groups do complain, the problem may appear to be an aberration when it is actually commonplace. Unless there is the staff and time to track the outcomes of criminal prosecutions, the oversight agency may not be aware of cases that are not filed, are dismissed or where evidence is suppressed due to police misconduct. Such data can be of use in effecting better training, clearer policy and reducing risk and liability related to the police department.

Review Systems:

These systems typically allow the oversight body to review only cases that are closed.

How it Works: An individual or a Board / Commission is authorized to review Internal Affairs (IA) investigations of complaints, find them adequate or not, and state whether it agrees or disagrees with the IA findings. Often such boards may recommend further investigation and/or make policy and training recommendations.

i. Oversight agencies with professional staff typically review all of the IA investigations and provide feedback. This includes reviewing interviews, recordings, evidence and IA reports checking to insure the IA investigation was thorough, timely and unbiased.

ii. Smaller agencies or volunteer review agencies may only be able to provide full review of selected cases.

iii. In some instances, agencies have the authority to require additional investigation but unless there is adequate time to review and return it to the department, it may be too late to have any practical effect on the outcome.

iv. Review boards frequently hold their meetings in public. How these meetings are conducted and what can be made public depends to a great extent on state law and union contracts.

Strengths: These systems can provide greater transparency and an additional layer of civilian and greater involvement by the community. When they make recommendations, the department may be more inclined to take action.

Weaknesses: These systems sometimes lack the independence they need to be effective. If the review board is all-volunteer, they can review only a limited number of cases. The time commitment can be overwhelming as all members not only need to review cases, they need to go through systematic training. Attendance at NACOLE conferences and workshops can be helpful. Local attorneys and civil rights or advocacy groups may provide training opportunities. But each and every review board member needs to be trained and this is expensive in terms of both time and money. It is often tempting to rely primarily on the police department to provide the training. The review board may become too dependent on the police department and recognized as such by the larger community.

Investigative Authority:

This allows for investigations to be conducted by the oversight agency and does not rely on investigators from within the police department. This can be particularly effective when the local police department has lost the confidence of the community to investigate itself.

In some instances, authority may be granted to monitoring type agencies or review agencies to contract with outside investigators to conduct investigation of complaints as needed. This usually occurs under a prescribed set of circumstances—typically when it is clear the general public would have no confidence in law enforcement investigators being impartial in the specific matter.

How it Works: An Oversight Agency or a Board/Commission is authorized to investigate the class of complaints and allegations identified in its establishing authority. Once the complaint is lodged and identified as being under the jurisdiction of the oversight agency, the oversight agency may:

i. Identify the relevant police policy or policies that, if supported by evidence, constitute the basis of the complaint and allegations.

iii. Gather evidence including photographs, sound and video recordings, receipts, and documents relevant to the complaint.

iv. Prepare an investigative report identifying the witnesses interviewed and summaries of their testimonies; weigh the evidence and credibility; identify any gaps in the investigation due to lost or unavailable documents, unavailable or uncooperative witnesses, etc.

v. Make recommendations or findings as to whether the evidence supports the allegation(s). In some oversight systems, the agency has the authority to recommend and/or impose discipline.

Who Conducts the Investigations:

i. Trained, skilled investigators that work within the specific oversight agencies or commissions should perform the work.

ii. It is not necessary, or even desirable, that the investigators be formally trained law enforcement officers. What is necessary is that the investigators be well trained. There are certified investigation programs within the US; for example, civilian investigators frequently work for public defenders at the state and federal level. It is important that they receive ongoing training.

iii. Agencies that rely on volunteers should not attempt conducting investigations.

Strengths:

i. This system can help rebuild the trust of the community-particularly in communities in which confidence in the police department’s ability to investigate itself has been compromised by a history of lackluster or inadequate investigations.

ii. This system avoids conflicts inherent in many internal affairs departments in which investigators are rotated from, then back into, other units such as patrol, SWAT, or investigations.

Weaknesses:

i. It adds to the size of the staff and thus costs to run the program; however, the city/county has to pay for investigators regardless of whether they are within the oversight agency or within the police department’s internal affairs program.

ii. Police departments are often resistant to having non-police investigators conducting investigations.

iii. Working through the necessary administrative changes and possible challenges by local police unions may take additional time and political will.

iv. As with all oversight programs this authority will only address issues related to specific, individual complaints and may not help identify systemic issues.

i. Evidentiary Hearings: Some larger review boards have the authority to hold evidentiary hearings on complaints. This requires support staff to organize materials, forums and assist with findings and report writing

ii. Appeals: Some larger review boards have the authority to hear appeals filed by either the named officer or the complainant and overturn any decision made by the Chief of Police or other command staff responsible for making decisions based on the IA reports and recommendations.

Strengths: These boards and functions can be effective in keeping the complaint system from being, or appearing to be, a closed system in which only police command staff and officers have any direct responsibility or control over the outcome of complaints from community members.

Weaknesses: They require additional professional and support staff. Review board members will require specific training on conducting hearings that guarantee the procedural and substantive rights of all sides.

Administrative Prosecutorial Units

This is a fairly new development that has found success in the city of New York. It involves a special unit of attorneys and investigators responsible for investigating and prosecuting administrative complaints against police department employees.

How it Works: Allegations are investigated and based on the outcome of the investigation, the case is dismissed or moves forward to an evidentiary hearing before an administrative law judge. The judge’s findings and conclusions are forwarded to a police executive for a final determination.

Strengths: Unlike most oversight systems addressing the complaint process, this system is highly independent from the police department and the standards for objectivity and thoroughness are high. The percentage of sustained allegations is over 85%, far above the norm for other oversight systems.

Weaknesses: This system is being employed by one of the largest cities in the nation. The resources are beyond the reach of most communities. Counties or regions might find pooling resources a worthwhile investment.

Systemic Audits of High Risk Police Programs

A few metropolitan areas have adopted a program of conducting systemic audits of high-risk police activities such as stops, arrests, and searches and high risk programs including property units, SWAT, vice and gang units. These audits are conducted according to Generally Accepted Government Accountability Standards (GAGAS).

Oversight agencies or Inspectors General establish a schedule for auditing the performance specific divisions and programs much the same a financial auditor audits the procedures and policies of a business, non-profit or government agency. Within the police context these audits can uncover unconstitutional policing, problems with supervision and weaknesses in police training and existing policies.

Strengths: Auditing programs are efficient in detecting trends and common practices and are statistically reliable. They can be done using in-house resources or by contract with outside agencies. Audits are useful in confirming strengths within a program or department and can accurately measure progress over time. Unlike oversight agencies that concentrate on how complaints are handled, audits can be used to establish the level of professional, constitutionally based policing throughout the department.

Most communities now realize that oversight is not a one-size-fits-all proposition. Many oversight practitioners are finding that it is less useful to talk about models and more useful to talk about options of authority.

The powers and authorities granted to an oversight agency can be combined in any manner that works best for each individual community. While a volunteer review board may not have the resources to insure each complaint and investigation is handled in a manner that guarantees transparency and accountability, it does add an important layer of involvement, communication and trust building. Review of closed cases might be frustrating for some, while other communities may choose to commit resources that are adequate to insure each review is thorough and the opportunity for feedback and change is genuine.

Is one form of oversight better than another?

Many oversight agencies have merged features from the different systems to address their specific needs.

As with any oversight systems or any combination of authorities, it can be an uphill battle to empower civilians to engage in processes that have traditionally been entirely within the bailiwick of the police. Accusations of “meddlesome amateurs,” “interfering with the police,” and “Monday morning quarterbacking,” may be among the kindest responses policy makers face from critics of civilian oversight. If systems are too weak to be effective they will fail or simply wither before healthy change in police culture can be achieved.

One of the first questions to consider is whether the oversight system will focus on the traditional realm of complaints or if the community sees a broader role for oversight.

Communities may find they are better off granting authority that may never need to be used than they would be in withholding authority that may be needed at a critical time.

Diluted systems should be avoided. Inadequate funding, lack of independence and the lack of access to critical information will make a skeptical public even more skeptical and will not result in the cultural change in policing the oversight system was created to address.

If the investment is made and pays off in improved police performance, it should help identify high-risk law enforcement employees, reduce litigation against the city or county and lower the amount of damage awards. In short the program may help pay for itself.

Greater confidence in law enforcement also pays off in reduced crime and safer communities, as more people are willing to report crime and testify in criminal cases.

Each model derives its authority and powers from the implementing law(s), ordinance(s), and/or charter of its jurisdiction (typically its city or county). A charter amendment may be desirable to ensure the oversight program becomes a permanent part of local government and cannot be eliminated without another charter amendment.

All oversight bodies have limited authority and civilian oversight alone cannot ensure police accountability. Genuine change must be seen as desired by law enforcement leadership. And oversight must be seen as contributing to the solution.

Additional internal and external mechanisms will be needed. Consider characteristics of the population, law enforcement agency, statutes, and collective bargaining agreements when deciding what type of system will best suit your community’s unique needs and resources.

[1] A detailed study was conducted in 2005 by the Police Assessment Resource Center, PARC, this information while highly relevant is 10 years old and with the increased number of federal consent decrees, cities have found ways to strengthen their oversight systems. https://www.parc.info/.../Review-of-National-Police-Oversight-Models-Feb-...

There is no right answer as to what an effective police oversight body “must” look like. As many of the FAQ’s point out, flexibility is key. You can still get to the right outcome through different mechanisms. However, here are some features, some tangible, some not, which are key to effective police oversight:

Independence. The oversight body must be separate from all groups in order to garner trust by being unbiased.

Adequate funding. Oversight bodies must have enough funding and spending authority to fulfill the duties set forth in the enabling legislation. This includes enough money for adequate staff and money to train that staff.

Access to all critical pieces. This includes access to all necessary information and evidence in an investigation, but it also means access to decision makers in both the law enforcement agency and elected officials.

Rapport. The talent, fairness, dedication, and flexibility of the key participants- in particular the oversight director, chief elected official, police chief or sheriff, and union president. The rapport between the chief players can be far more important to the success of the oversight system than the systems structure. [1]

Ample authority. Whatever the oversight model chosen, it must have enough authority to be able to accomplish those goals.

Ability to review police policies, training and other systematic issues. Many see this as one of the most important roles an effective oversight agency can have. This ability shifts the focus on being reactive to past events to proactive with the possibility to resolve issues before they begin.

Community/Stakeholder Support and Outreach. Maintaining community interest is important for sustaining an agency through difficult times when cities or government jurisdictions may need to cut services for budget reasons. [2]

Transparency. Systematic reporting provides transparency and accountability to the community, and typically includes complaint analysis and other observations about the law enforcement organization and its practices. Reporting also increases public confidence in the oversight agency, as much of the work related to complaint investigations may be confidential and protected from public disclosure.[3]

1) You must first have a core group of citizens who are sufficiently concerned about the issue and who are willing to unite and work together over an extended period of time. This core group should seek out training and support resources prior to the establishment of a formal planning or advisory committee. If not, the voice of the community risks being marginalized once professional stakeholders become involved in the process.

2) Begin by framing the public discussion and inviting public input. Emphasize that the purpose is to improve trust between police and the community by ensuring public confidence in the agency through accountability and transparency. The end goal is to deliver the most professional and effective police services possible to the community. Invite police officials and union representatives to be a part of the conversation from the start. Get their input and make it clear to them that their suggestions and concerns are valuable to the process.

Acquire/develop and publicize data that clearly demonstrates a local need for civilian oversight (costs of past lawsuits, history of injuries, high ratio of use of force to arrest, lack of public confidence in policing agency, etc.).

3) Establish a planning or advisory committee composed of elected officials, legal advisors, police officials, police union representation and community advocates. Begin to meet regularly to educate the group on the pros and cons of various oversight models, legal requirements, collective bargaining limitations, etc.

Identify sources of resistance and issues of contention and begin to address the concerns or neutralize the resistance.

A skilled negotiator or professional mediator may be helpful if communication becomes difficult or begins to break down.

4) Identify sources of technical assistance such as NACOLE, the Department of Justice, local bar associations and practitioners of civilian oversight in other jurisdictions. Visit oversight agencies in other jurisdictions to learn from their staff and observe their procedures.

5) Identify the proposed agency’s objectives and scope.

What type of complaints will be accepted? How many complaints do you expect annually? Will the agency make both disciplinary and policy/training recommendations? Who shall be the final decision maker for complaint disposition? What should happen when there is a disagreement between the police department and the oversight agency? What will be the public reporting requirements for the oversight agency? Will the agency offer mediation? Will the agency have subpoena authority? How will the agency’s effectiveness be measured? How will elected officials hold the oversight agency accountable?

6) Based upon the agreed objectives and scope, select an agency structure:

Citizen Review Board model with or without independent investigative authority and mandate for policy recommendations.

Monitor, Auditor, Ombudsman or Inspector General model with or without independent investigative authority and mandate for policy recommendations.

7) Determine whether the oversight agency will be created by ordinance or within the municipal charter. Generally, it is better to have it created within the city charter, as a municipal ordinance is typically easier to overturn.

8) Identify staffing needs

Decide on type and number of staff

i. Administrator/ombudsman/monitor/IG

How will the director be selected and what are the director’s terms and qualifications of employment?

How can the director be reappointed or removed?

ii. Volunteer board members

If the agency will be volunteer based, how many volunteer hours per week/month will it take for a volunteer to perform competently?

How will the volunteer board members be selected?

What are the qualifications (and disqualifications) for being a board member?

iii. Administrative assistant(s)

iv. Investigators

v. Legal counsel (Corporation Counsel or outside legal counsel)

Consider how training and development will be regularly provided to agency staff and/or volunteers.

9) Develop a specific and detailed budget estimate and work to secure political support of elected officials for full funding.

10) Present the proposal to the public and allow time for public input and feedback. Work with community advocacy organizations to build public support for the proposal to ensure its passage.

In the end, you should advocate for the most effective structure possible that can be created within the current local political context, but recognize that compromises may have to be made to secure its initial passage. Revisions to the law that would strengthen the agency can be proposed at a subsequent point in time when the political context may be more amenable.

The mission NACOLE is to enhance fair and professional law enforcement responsive to community needs. NACOLE also:

Provides for the establishment, development, education, and technical assistance of/for the civilian oversight of law enforcement.

Develops a national forum to provide an informational and educational clearinghouse and a publication resource of educational information for the public and organizations in the field of civilian oversight of law enforcement.

Encourages the highest ethical standards in organizations that help oversee law enforcement.

Educates the public by developing mechanisms to enhance police and community relations, educate law enforcement agencies, and encourage law enforcement to respond with sensitivity to citizens’ issues and complaints.

Provides, for a reasonable fee, consulting services to states, counties, cities and towns to assist in the design or refinement of oversight mechanisms.

Provides training to staff members and volunteers of oversight agencies.

Provides technical assistance and advice to jurisdictions that are considering the creation or revitalization of oversight bodies.

Identifies best practices as they emerge from the experiences of members.

Encourages networking, communication and information-sharing to counter the isolation inherent in the profession.

Furnishes information to government officials and community representatives that will support their advocacy of oversight in their states, counties, cities and towns.

Educates members by organizing an annual training conference that highlights best practices in the rapidly evolving world of citizen oversight through a program featuring guest speakers, panel discussions and workshops.

Connects members to one another through informal and formal networks of people who freely share their expertise and experiences in citizen oversight.

Being a practitioner in civilian oversight of law enforcement requires one to meet certain qualification standards and to receive ongoing training. However, training and work qualifications are different for directors, investigators, supervisors, and board members. The NACOLE website provides a list of training topics and qualifications for full time practitioners and volunteer board members [create links to relevant NACOLE pages].

For agency directors (including auditors, monitors, and ombudsmen), NACOLE recommends at minimum a Bachelor’s degree in a related field, but a Master’s degree, Juris Doctorate, or PhD is highly desirable. At least four years of legal or administrative experience are recommended, along with prior supervisory or managerial experience. An agency director must be innovative and possess good judgment, objectivity and integrity. An agency director must be able to work effectively with a wide array of professional and elected stakeholders as well as with a multicultural community. An agency director should have exceptional communication skills and the ability to address both community and institutional concerns. The agency director must be able to manage people and organizations by setting goals, developing and implementing programs, supervising and managing personnel, and developing and managing a budget. An agency director must be resilient and possess strong diplomatic skills. A director must also possess knowledge of general legal principals and statutory law as well as practices and procedures related to conducting investigations and administrative hearings. A director of a civilian oversight agency should have strong knowledge of the rules and regulations governing police operations, organization and administration.

A supervisory investigator should have a Bachelor’s degree and at least five years of experience conducting civil, criminal or factual investigations. Supervisory investigators should possess the ability to plan, conduct and supervise complex investigations and provide training and supervision for other investigators. A supervisory investigator must have the ability to review and edit the work of other investigators to ensure that an investigation is thorough and the factual findings and analyses are sound. Supervisory investigators must have knowledge of criminal justice procedures and the ability to establish investigative procedures and standards consistent with best practices in civilian oversight. A supervisory investigator should also possess a commitment to civilian oversight and strong communication skills.

First line investigators for civilian oversight agencies should have a Bachelor’s degree in a related field and three years of experience conducting civil, criminal or factual investigations. Oversight investigators should have knowledge of investigative techniques and procedures and the ability to conduct detailed factual interviews with aggrieved individuals, witnesses and police officers. Investigators should possess knowledge of evidence handling and preservation procedures, of skip-tracing techniques to locate witnesses and of legal and criminal justice procedures. Investigators must have the ability to conduct investigations in an objective and independent manner. Investigators must be able to produce clear, concise, well-organized and thorough investigative reports and communicate professionally and courteously with individuals from a wide variety of cultural and socio-economic backgrounds. Investigators must be resourceful and demonstrate sound judgment in collecting and developing facts and have the ability to analyze and apply relevant laws and regulations to the facts of a case.

For an oversight agency to be perceived as credible and legitimate, board or commission members must also acquire the knowledge and skills necessary to perform their assignment responsibly. The types and depth of relevant training depend on the role, duties and authority of the board or commission. Each agency must critically assess the tasks and functions its members will perform and determine the skills, expertise or training they need to acquire in order to perform their duties.

Board and commission members should receive an initial orientation to civilian oversight including a review of the variety of models of civilian oversight. Members should be provided with an historical account of the establishment of their oversight agency and receive training on the charter, ordinance, or municipal code which established the oversight agency. Members should also be informed of the expectations the local community and government stakeholders have of the oversight agency. Additional education should include laws governing public records and public meetings; confidentiality requirements; state and local laws that affect an officer’s rights and privacy; case law on stops and detentions, search and seizure and the rights of an arrestee; as well as the steps in the criminal justice process including arrest, booking, arraignment, bail, hearings, and trial.

Members should receive information on the history, organization and evolution of the local law enforcement agency and should be exposed to police training on a wide variety of police practices and procedures, including: patrol; rules of conduct; procedures for detention, arrest, booking, transport, and provision of medical care; use of force guidelines including defensive tactics, takedown and pain compliance maneuvers, handcuffing techniques, baton use, use of less lethal and restraint devices, and use of firearms. Members should receive training on procedures for the investigation and review of shootings and in-custody deaths, first amendment activities, and policies for dealing with mentally disturbed individuals and people under the influence of drugs or alcohol. Members should also become familiar with the history, culture, and concerns of the communities served by the law enforcement agency, in particular the public’s potential concern with biased based policing and racial profiling.

Finally, members should receive specific training on their oversight agency’s operations and procedures including complaint intake, investigation, mediation and disciplinary procedures; evaluating credibility, reaching findings and due diligence requirements; procedures for hearings and meetings; and developing policy recommendations. Ride-alongs with members of the local police agency should also be provided to board and commission members.

See the NACOLE webpage here [create link] for potential sources for training.

Filing a complaint against a police officer should be relatively easy with as many access points as possible. The types of complaints that an agency chooses to accept will have major implications on staffing needs, system costs, and case processing delays. A lot will depend on the nature and level of distrust of police and/or a lack of confidence in the ability of the police to treat complaints objectively and take their complaints seriously. When determining what complaints will be accepted, the following factors, along with the authority/jurisdiction of the oversight agency must be considered:

I. Form

A. Readily-accessible complaint forms will likely be available at the oversight agency, local police station, or online. The complaint process usually begins with the complainant submitting a complaint form or making a verbal complaint against an officer. Citizens can also call the agency and request that a form be mailed to them. Complaint forms can also be submitted via fax, hand delivery, or email.

B. Under some Investigative models, anonymous complaints are not always accepted where specific incidents are investigated and a complainant’s identity can be crucial during the investigation. A complainant’s identity may also be required at the conclusion of an investigation if the complainant is needed to testify at an adversarial hearing. Anonymous complaints are more commonly accepted under the function of an Auditor/Monitor/Ombudsman model, where the identity of the complainant is not necessarily required to review broad policies and practices.

C. Complaint forms may require a signature under the penalty of perjury. This may have a chilling effect on a person’s willingness to file a complaint. The reason for the language is to deter false allegations against the police. One way to minimize the chilling effect while still minimizing the number of false allegations is to not have the language on the initial complaint form, but an agency might choose to include it if/when the complainant provides a sworn statement to the oversight agency. Caution: it should be remembered that complainants and witnesses are usually not trained observers. What they observe and experience represents an individual, and therefore potentially limited, perspective on events. Statistically, most people do not like to complain and they encouraged what they experienced from their perspective without the worry of being punished if a formal investigation results in a finding that they were mistaken as to some of the facts.

D. Requiring complainants and witnesses to be Mirandized before submitting a formal complaint is discouraged because it is often associated with being in police custody and/or being arrested on the suspicion of committing a crime. Such a practice could have a chilling effect on individuals coming forward to file complaints.

II. Initial Intake

A. Who Does the Civilian Complain to? Civilian oversight agencies often foster a greater sense of trust among citizens with regards to how complaints against the police will be resolved. Some jurisdictions require that copies of all initial complaints (that fall within the agency’s jurisdiction) are forwarded to the oversight agency, while other jurisdictions permit the law enforcement agency to receive and investigate complaints and forward their findings to the oversight agency for review. There are also jurisdictions where the police department and the oversight agency both independently investigate the same allegations of misconduct, sometimes concurrently.

B. Thus, during the initial intake of a formal complaint form, the oversight agency will likely have a classification process by which the subject matter jurisdiction of a complaint can be evaluated. This assessment may also include a determination of whether the nature of the complaint is suitable for mediation or other non-investigative options such as conciliation, or rapid resolution.

What should an agency do when it receives information regarding allegations not within its jurisdiction?

1) Refer the entire complaint to internal affairs?

2) Only refer the allegations that are not within its jurisdiction and investigate the rest of the complaint?

3) Should the agency have authority to investigate the entire complaint if it has jurisdiction over at least one of the allegations?

Regardless of the particular intake process, oversight agencies are often required to notify the police department of the complaint when it is received and provide copies of materials gathered in the initial intake process. Similarly, police departments are expected to forward complaint information to the oversight agency. Protocols for sharing information and accessing data must be established to foster transparency and accountability. Professional data bases are recommended as they ensure data are collected and stored and can be analyzed efficiently.

III. Subject Matter

A. The types of complaints that should be investigated include allegations that, if proven true, would represent misconduct under the police department’s policies and procedures. For example, this may include use of unnecessary or excessive force; unlawful arrests; searches and seizures; theft or destruction of property; first amendment violations; dishonesty; violation of local, state, or federal laws and police regulations; failure to provide identification; failure to provide a service or allegations that bias toward the complainant or suspect was evidenced through language or behavior demonstrating a bias based factors such as race, ethnicity, immigrant status, socio economic status, age, sex, sexual orientation, gender identification.

B. Subject matter jurisdiction for each oversight agency will usually be defined in the ordinance/local statute that governs the oversight process.

Standing

Depending on the jurisdiction and contingent upon the oversight agency’s function, a number of parties may have standing to file a complaint. As mentioned, some jurisdictions accept anonymous complaints and third party complaints. Other jurisdictions require each victim of police misconduct to file his or her own complaint, while others allow witnesses to file on behalf of victims who do not file their own complaint. Often times, parents may file complaints on behalf of minor children. Furthermore, some agencies can self-initiate their own investigation.

V. Time Restrictions

A statute of limitations is regularly put in place to ensure timely filing. Without such a restriction, an agency’s ability to acquire evidence decreases after a significant period of time and witness recollections of an incident are likely to diminish. However, the need to preserve the quality of an investigation must be balanced with the need to ensure that complainants are not overly constricted in their ability to file a complaint. Exceptions to the time restrictions may be made when a complainant has been incarcerated or hospitalized.

Oversight agencies therefore may establish a reasonable timeline that clearly defines how long a citizen has to file a complaint, when the agency must complete the investigation, and when potential discipline of the officer must be imposed. One year is commonly allowed for citizens to file complaints. However, oversight agencies may be granted discretion to extend the time frame for a complainant’s non-availability based on circumstances beyond his/her control.

Many agencies have a 180-day rule for the time to complete an investigation. Exceptions for this rule may be given for factors such as a showing of “good cause,” i.e., complexity, number of witnesses, staffing shortages, etc. Like jurisdiction, time restrictions, if there are any, are usually written into the ordinance/local statute governing the oversight process.

A. In the world of civilian oversight, oversight systems come in a wide variety of shapes and sizes—much depends on what the community is hoping to achieve through oversight and what it can invest in the new agency. Many civilian oversight agencies are hybrids with a variety of features that may or may not include the ability to conduct investigations that are independent from the law enforcement agencies that seek to improve (create a link to FAQ #2). To varying degrees, an oversight agency can be structured for a specific function: investigating, reviewing, or auditing.

B. The investigative function tends to be implemented when there is a high level of community mistrust in the local law enforcement agency’s ability or willingness to conduct thorough and impartial investigations. Under this model, the oversight agency is specifically empowered to conduct independent investigations and must have access to the relevant documents, files, and electronic databases of the law enforcement agency. Ideally, an oversight agency with investigative authority should employ specially trained investigators to conduct interviews, acquire evidence, and write reports. Therefore, the funding necessary to hire a qualified investigator should be made available in the oversight agency’s annual budget. Qualification standards for oversight investigators can be found here [create link to Wechtner’s guidelines]. In addition to independently collecting evidence and interviewing complainants and witnesses, an oversight agency with an investigative function should have direct access to officers for the purpose of conducting interviews or the ability to sit in on an interview and ask questions during the officer’s interview with internal affairs.

C. Under the review systems of civilian oversight, sworn officers from inside the policing agency conduct the investigation and submit the closed investigative files and report to the oversight body which then analyzes the quality of the investigation and may then make recommendations or request further investigation. Agencies based solely on the review model typically do not have independent investigative authority nor the capacity or resources to conduct independent investigations.

D. Similarly, agencies that feature ongoing auditing may or may not include investigative authority. In some situations an oversight agency has investigative powers when needed, but it is not necessary for the oversight authority to conduct separate investigations for every complaint. An oversight agency’s mission usually involves tracking a complaint from intake to outcome to identify troubling or unconstitutional patterns and practices for the purpose of recommending policies and training that will correct the problem. Sometimes, simply examining relevant data provided by the policing agency can identify a problem. In some instances, separate and independent investigations may be required to ensure the accuracy of the data being analyzed or when public confidence in the police to investigate themselves in a specific matter is absent. In some cases, an oversight agency may find it necessary to construct an investigative method that acquires or produces new information that the policing agency does not have or is unwilling to release to the oversight agency.

E. What is necessary in any investigation is that it is, and is perceived to be, timely, objective, unbiased and thorough.

A. Oversight Agencies With Authority Over the Final Outcome: Within the current oversight landscape, few existing oversight agencies have the authority to make final determinations as to the outcome of an investigation. This authority is more common in oversight agencies that have developed within the context of the city being under a federal consent decree to reform its police department. However, there are also some well-established agencies that have the authority to make these final, binding determinations without having received the authority through consent decree requirements. These can take the form of hearing boards that take evidence and testimony and render findings of facts and conclusions of law and determine whether the allegations within the complaint should be sustained or dismissed after weight the relevant evidence. These oversight systems, such as in Portland, Oregon, also have an appeals process in which either the complainant or the officer may appeal the decision.

B. A New Trend? In the city of New York, a specialized prosecutorial unit is in place that investigates cases and presents their case to a specialized administrative judge—at the same time, the officers’ right to counsel is also preserved and they are defended in front of the same judge. After receiving the recommendation of these special administrative courts, a ranking police executive either accepts or rejects the recommendations of the court. In this system, well over 80% of the allegations are sustained.

C. Oversight Agencies that Make Non-Binding Recommendations: The majority of oversight agencies are limited to making recommendations to the police department as to what the outcome should be based on a review of the evidence that has been collected, presented and analyzed.

i. The imposition of corrective measures (such as training) or discipline (typically based on a disciplinary matrix that ensures discipline is consistent and even-handed) is left to the police department itself and usually falls to the chief of police, commissioners or a command staff executive.

ii. A police executive or body having the authority to reject the findings of an investigative oversight agency may lead to a number of foreseeable problems. This type of authority may be seen as undermining the oversight process and may result in a lack of the community’s support for, and cooperation with, the police department. Thought should be given as to whether the police executive or commission with the authority to reject oversight recommendations should justify his or her decision in writing as the absence of a well-reasoned justification raises issues of bias and a possible lack of respect for the oversight process and the community. What will always be problematic and possibly frustrating is when the oversight agency and the police department can review the same evidence and come up with divergent conclusions. The police department’s should rest with the Chief, Command Staff executive or Commissioner--recommendations should not be the result of a popularity contest with supervisors and separate levels of command staff weighing in on the outcome.

iii. Some agencies are governed by rules similar to those in Washington D.C. In that community, the police chief is bound by the findings of the Office of Police Complaints, but retains the discretion to determine the discipline to be imposed. Under the D.C. system, if the Office of Police Complaints investigates an allegation of misconduct and dismisses it, the department cannot discipline the officer for that allegation.

iv. Oversight agencies that make recommendations may find it useful to track the number of cases in which its recommendations are rejected and report this information to policy makers and to the public.

v. The oversight agency that performs reviews of investigations may also use information used in the review process to make recommendations as to policy changes or training programs that are needed. Enabling legislation can establish the level to which such recommendations are binding on the police department and what exemptions, if any, are necessary or allowed.

vi. In all instances, a realistic analysis of budget and training must be part of the process of setting up the system and determining the scope of its authority. Few members of volunteer boards have the time to devote to review detailed reports, conduct hearings, and draft findings and or orders. In jurisdictions in which review boards select only a sample of cases to review, it will be difficult to ensure that all civilian complaints receive equal treatment.

Police Commissions with broad powers: A police commission, composed of civilians, that has absolute authority to hire, fire, demote, suspend, and terminate officers can work well in larger communities that can afford to compensate commissioners for what are full-time positions. Establishing an effective oversight system that engages civilians will be only of their many duties.

i. The commission will be responsible for setting up a civilian complaint system and ensuring it has sufficient independence from the police department, involves civilians in meaningful ways that allow the program to function effectively and free from pressure from the police department. This includes determining what role oversight will take in complaint intake, investigating, adjudicating, recommending corrective measures and making policy and training recommendations.

ii. In general terms it may be necessary to remove disciplinary power from the chief of police if community trust is so eroded as to make confidence in the department’s ability to investigate and discipline its officers impossible. The ultimate goal is to restore community trust and foster healthy relationships between the community and law enforcement. Depending on the level of trust that exists, removing some powers from the chief of police may be a necessary, but hopefully temporary, measure to ensure accountability.

Each community will have to make these decisions based on their specific needs and what they deem as necessary to transform police departments into open and accountable parts of local government. Some communities choose to allow a chief of police to retain broad discretion; the community then relies on the transformational effects of providing the chief with additional information from non-police sources and publicizing the chief’s record in taking appropriate disciplinary and corrective measures. Other communities have come to the conclusion that where a pattern of overlooking or condoning misconduct has been established, placing the disciplinary authority outside the police department may speed the process of promoting consistency and fairness.

Independent oversight agencies need the ability to obtain necessary information in order to be an effective overseer. Depending on the enabling legislation, this may include compelling testimony or evidence. However, access to this information from the police department may be achieved through either organizational structure or subpoena power or both. Police departments can, and often do, issue a general order compelling full cooperation with administrative investigations.

Where subpoena power is often most useful is to compel information from witnesses outside the police department. For example, a thorough investigation may require compelling the production of CCT video at or near the site of an incident. Such evidence often proves dispositive.

Some Internal Affairs departments may refuse to subpoena evidence from police officers they are investigating. This limitation can severely impact an investigation and result in an unnecessarily inconclusive outcome. For example identified police officers may have used their personal cell phones in the process of violating policies and procedures—obtaining these records is necessary if the investigation is to be thorough and objective.

Subpoena power is only one of many tools in the toolbox and many older oversight agencies do not have it. [1] Furthermore, obtaining subpoena power and issuing subpoenas do not come without challenges and also require the ability to be able to take the matter to a court of law to enforce the subpoena. It is important to note, that if you are unable to obtain subpoena power, you may simply have to work around the barrier and obtain information through other sources.

Trying to secure subpoena power by the oversight entity can involve lengthy negotiations or even court battles with officers’ unions or police agencies that consume significant time and cost. Some even question whether having subpoena power serves any useful purpose[2]. In order to protect the rights of police officers, federal courts limit who can force officers to testify and when that testimony can be taken[3]. If the oversight agency lacks the ability to compel officer testimony, subpoena power often adds nothing. Moreover, in some jurisdictions, state courts further curtail subpoena power, which has limited some agencies power to issue administrative subpoenas to those issued by approval of a court[4]. Make sure to check your own jurisdiction to see whether there are any additional limits in place.

If you are able include subpoena power in the agency’s enabling legislation, by all means, include it. If you are unable to, this is not a roadblock to effective civilian oversight.